Issues with Using Trademarks as Meta Tag Keywords

You could face legal problems if you use someone else's trademarks as your meta tag keywords.

What is a Meta Tag?

Generally speaking, a meta tag is an HTML code that is embedded within a website. This tag is used by the designer or owner of the website to quickly identify the content that is contained within the site. They are a powerful online tool because meta tag keywords are used by search engines and have a direct relationship to the frequency in which search engines will display a website as a hit.

Meta Tag Keywords and Trademark Issues

While meta tags have proven to be a powerful tool to help websites be "found" by search engines, there have been instances where trademarks have been used improperly as keywords in meta tags. Some companies have used their competitors' trademarks within their meta tags in order to draw business away from their competitors' websites. Such practice has resulted in several trademark lawsuits. If you use your competitors' trademarks within your website's meta tags, you could be risking a trademark lawsuit. If you lose the lawsuit, you could be ordered to pay damages and even the other side's attorneys fees.

How Do Meta Tags Work?

If you go to a website via a conventional internet browser, you will generally not see the meta tags that the website is feeding to search engines. However, even if we cannot see the meta tags, they are just as important to the website as the air we breathe is to us. Just to give an example, the keyword meta tag for a website that discusses how meta tags work in Texas might look like this:

<META name="description" content="Information on the meta tags keywords and how they are used in the internet">

Search engines are the primary users of meta tags, although many times the end user reads the description meta tag after the search engine runs the search report (the description meta tag is often shown below the link to the webpage to allow the browser to get a sense of the webpage before visiting it). Depending upon how the search engine's code is running, it will find and use a websites meta tags in order to index the website within the search. The importance of meta tags for use in search engines has waxed and waned periodically throughout the history of search engines.

Meta Tags Being Used to Divert or Confuse Users

There have been attempts (some successful) by many websites to use meta tags and meta tag keywords to divert or confuse internet surfers. The websites do this by using improper meta tags that do not accurately describe their own website and instead try to draw hits away from proper websites. As an example, a movie theatre company could plant the keyword "Century" or "AMC" in its website's meta tag to bring surfers away from those websites when they use those search terms. As another example, many websites that sell knock-off purses will use words like "Coach, Gucci, Dooney & Burke" in their meta tags in order to draw customers to their websites.

Many courts have found that using trademarked names like these is a form of trademark infringement when it causes customer diversion or confusion.

How To Stop a Website From Infringing a Trademark

In order to stop or hinder a website from infringing on a trademark by using it in the meta tag, the owner of the trademark should first send a cease and desist letter to the website owner that demands that the trademarked terms be removed from the meta tag. If this letter does not work, the trademark owner needs to file a trademark infringement lawsuit in federal court. If the owner of the trademark is successful in his or her lawsuit, they may be entitled to money damages as well as their attorney's fees in certain situations. Where it can be shown that the use of the trademark was willful and with intent to deceive the customers, the money damages can amount to hundreds of thousands, if not millions, of dollars.

When Using a Trademark in a Meta Tag May Be Allowed

What you've read above may incline you to think that any use of a trademark in a meta tag that that could cause confusion is disallowed. However, this is not true. If a trademark is used incidentally to describe a good or a service that a company provides, or used to describe a geographic location, then the use of the trademark is permitted under the "fair use" laws. As an example, suppose a company was named "Rain Forest," and also had the term trademarked. If a company that sold art that was crafted in a rain forest used the term "Rain Forest" in their meta tag, this would not be a trademark violation because it would fall under the fair use laws.

As another example, in the case of Playboy Enterprises, Inc. v. Welles, Playboy sued a former playmate because she had set up a website and used "Playboy" and "Playmate" in the meta tag. The court ruled that Welles could use the terms based on a three step test a normative use of a trademark is permitted where:

The product or service can not be readily identified without using the trademark (the trademark is descriptive of a person, place, or product);

Only so much of the mark may be used as is reasonably necessary for identification, and

The user does nothing to suggest sponsorship or endorsement by the trademark holder.

The court found that Welles could use the trademarks because she could not identify herself without using the trademarked terms. In addition, the website had many disclaimers that the website itself was not linked to Playboy which further lessened the likelihood of confusion.

However, even this three part test has been challenged and overturned by some courts. There is no clear-cut way to determine whether a use of a trademark in the meta tag keywords for a website is going to be considered fair use until you go to trial and get a decision.

Tips on Using Meta Tag Keywords

So, now you've read this whole article and are still trying to figure out what all of this means to you. Here is some tips to help you avoid trademark issues when using meta tag keywords:

Try to avoid using trademarked terms in your meta tags unless you receive permission from the holder of the trademark (for example, if your website sells that company's products).

If you are in doubt as to whether you should include a trademarked term in your meta tags, err on the side of caution and exclude it.

Never put a trademark in your meta tags with the goal of drawing traffic away from a competitor or confusing the customers. This can land you in very hot water.

Next Steps

Contact a qualified business attorney to help youaddress you business's operational needs. (e.g., Chicago, IL or 60611)